In People v. Wimberly (86 AD3d 651, 926 N.Y.S.2d 718 [3d Dept. 2011], it was assumed that due to a prior federal conviction, defendant was a violent predicate felon, but the People failed to enumerate a State statute under which defendant could be considered a predicate felon.

The Appellate Division, Third Department, found "a question as to whether counsel provided inadequate legal assistance by failing to detect and correct the mistaken impression of defendant's sentencing status" and held that "defendant raised an issue sufficient to require a hearing as to whether counsel's representation was deficient and, if so, whether defendant was prejudiced thereby" (86 AD3d at 653).